Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 481 (HP)

Surinder Paul v. State of Himachal Pradesh

2023-12-04

RANJAN SHARMA

body2023
JUDGMENT : RANJAN SHARMA, J. 1. Notice. Mr. Rajan Kahol, learned Additional Advocate General, appears and waives service of notice on behalf of the respondents. 2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the orders intended to be passed herein. 3. The petitioner has filed the instant writ petition with the following prayers: “(a) That the respondents may kindly be directed to transfer the petitioner from present place of posting i.e. Government Senior Secondary School Rathal, Post Office Bholar, Tehsil Chirgaon, District Shimla, H.P. to any one station mentioned in para 6 Supra. (b) That the respondents may kindly be directed to decide and consider representation of the petitioner as per law and policy in time bound manner.” 4. Case of the petitioner in brief is that he was appointed as a TGT (Non-Medical), on contract basis, in GSSS Lakadhar, Tehsil Chirgaon, District Shimla, which is a remote/rural area on 11.11.2019. While working at the said place, the petitioner was regularized in April,, 2022. Consequently, the petitioner is working at the same station. 5. Now, the grievance of the petitioner is that in terms of the mandate of Clauses 12 and 16 of the Transfer Policy issued by the State Government on 10th July, 2013, as amended from time to time, an employee is required to serve for two winters and three summers in the rural/remote area in terms of the policy. Despite having completed the requisite normal tenure in the aforesaid rural/remote area, the respondents have transferred to soft area, despite representation dated 03.08.2023, Annexure P-1, whereby, in Para-3, the petitioner has indicated six stations of choice therein. 6. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, submits that a perusal of the representation dated 03.08.2023, Annexure P-1, reveals that the petitioner has indicated five stations in Para-3 of the representation, which are in one District, whereas, five stations should have been indicated and that too more than one Districts, as per existing Transfer Norms. 7. Mr. 6. Per contra, Mr. Rajan Kahol, learned Additional Advocate General, submits that a perusal of the representation dated 03.08.2023, Annexure P-1, reveals that the petitioner has indicated five stations in Para-3 of the representation, which are in one District, whereas, five stations should have been indicated and that too more than one Districts, as per existing Transfer Norms. 7. Mr. Sanjeev Kumar Motta, learned counsel for the petitioner, submits that though the representation dated 03.08.2023, Annexure P-1, indicating six stations, but as on day, some stations as indicated in the representation, have been filled-up, by way of appointment/transfer and the petitioner may be permitted to furnish fresh stations of choice in soft areas, in terms of Clause 16.1 of the Transfer Policy. The prayer so made by Mr. Sanjeev Kumar Motta, learned counsel for the petitioner, requesting to furnish additional stations, by way of fresh representation, being innocuous, is not opposed by learned State Counsel and the same, in the interests of justice, is accordingly granted. 8. In the above facts and circumstances, as referred to above, this Court permits the petitioner to make a fresh representation, within a week from today, in continuation of the earlier representation dated 03.08.2023, Annexure P-1; with directions to respondent No. 2-Director, Elementary Education, Himachal Pradesh, to decide the representation dated 03.08.2023, Annexure P-1, alongwith the additional representation, indicating one additional station of choice, as referred to above, within two weeks thereafter, in consonance with Clauses 12 and 16 of the Transfer Policy and to pass appropriate orders, within four weeks thereafter, in view of the mandate of this Court in CWP No. 1105 of 2006, titled as Sushila Sharma vs. State of H.P. and Others, decided on 27.08.2007, which reads as under: “We, accordingly, dismiss the petition. We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. of H.P. who shall ensure that a proper transfer policy is formulated to ensure that the transfers are made only on administrative grounds and not on any others grounds. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/ rural areas. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/ rural areas. When transfers are made, the administrative department shall ensure that the employees who have already served in tribal/hard areas as well as remote/rural areas are not again sent to these areas and there is a continuous process of change whereby all the employees have a chance to serve in tribal/ hard areas as well as remote/rural areas. In the policy so framed, It should also be ensured that the transfer orders are not cancelled without making reference to the administrative department to put-forth its views. In the policy, measures shall be provided to ensure that employees (obviously influential) who have managed to remain posted in the urban areas/ cities are posted to rural/remote areas and hard/tribal areas in the transfer season when the transfers are made. The transfer policy should also ensure that people, who are posted in remote/rural areas, join their place of postings and do not manage to get their transfers cancelled on frivolous grounds as has happened in the present case. The policy be framed and filed in Court within two months from today. The Chief Secretary shall file his affidavit of compliance on or before 29th October, 2007 when the matter be listed in Court for this purpose only.” 9. This Court hopes and trusts that while passing the orders, the said respondent shall take into account the object and rationale behind the provisions of Clauses 12 and 16 of the Transfer Policy, coupled with the fact that the benefit of these Clauses, in the existing transfer norms are advanced and applied equally, to the employees in a cadre, so as to ensure non-discrimination and non-arbitrariness in State action in terms of Articles 14 and 16 of the Constitution of India, in view of the mandate of this Court in CWP No. 1105 of 2006, titled as Sushila Sharma vs. State of H.P. and Others, decided on 27.08.2007, which reads as under: “We, accordingly, dismiss the petition. We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. We, however, direct that a copy of this judgment be sent to the Chief Secretary to the Govt. of H.P., who shall ensure that a proper transfer policy is formulated to ensure that the transfers are made only on administrative grounds and not on any others grounds. In the policy to be framed, it shall be ensured that all the employees are treated fairly and equally and every employee during his tenure of service serves in tribal/hard areas and also in remote/ rural areas. When transfers are made, the administrative department shall ensure that the employees who have already served in tribal/hard areas as well as remote/rural areas are not again sent to these areas and there is a continuous process of change whereby all the employees have a chance to serve in tribal/ hard areas as well as remote/rural areas. In the policy so framed, It should also be ensured that the transfer orders are not cancelled without making reference to the administrative department to put-forth its views. In the policy, measures shall be provided to ensure that employees (obviously influential) who have managed to remain posted in the urban areas/ cities are posted to rural/remote areas and hard/tribal areas in the transfer season when the transfers are made. The transfer policy should also ensure that people, who are posted in remote/rural areas, join their place of postings and do not manage to get their transfers cancelled on frivolous grounds as has happened in the present case. The policy be framed and filed in Court within two months from today. The transfer policy should also ensure that people, who are posted in remote/rural areas, join their place of postings and do not manage to get their transfers cancelled on frivolous grounds as has happened in the present case. The policy be framed and filed in Court within two months from today. The Chief Secretary shall file his affidavit of compliance on or before 29th October, 2007 when the matter be listed in Court for this purpose only.” Moreover, while examining the claim of an employee, the respondents are under obligation to take into account, another aspect of the matter that once an employee has completed the normal tenure of two winters and three summers in a tribal area or such like areas then, the State shall not prolong the stay of an employee in such areas; on the pretext of awaiting the posting of a substitute to be sent to such areas when, it is for the State Authorities to work out modalities for posting a substitute or to arrange for manpower and an employee has who has completed his tenure has no role in the matter, in view of mandate of the law laid down by the Division Bench of the this Court CWP No. 2114 of 2018, titled as Sunil Kumar vs. State of Himachal Pradesh and Another alongwith connected matters, decided on 23.10.2018, which reads as under:- “2. The aforementioned question is stated to have been answered in favour of the petitioner by the authority itself vide impugned order passed by the Directorate of Elementary Education dated 25th August 2018 (Annexure P-4). The only reason assigned for not transferring the petitioner to one of the place of his choice is that no substitute in his place has been posted so far. The impugned order recites that the petitioner’s request whould be considered sympathetically “at the time of promotion/ appointment by posting substitute at his place in near future.......” In other words, while the official respondents do not dispute the petitioner’s claim that he deserves to be posted at one of the place of his choice, but the follow up action has been withheld for want of a substitute. 3. 3. “In our considered view, the substitute has to be found out by the respondents themselves and the petitioner cannot be subjected to a prolonged stay in the remote area merely because the authorities are unable to find out his alternate. 4. The writ petitions are accordingly allowed and the respondents are directed to find out the substitutes within a period of four weeks from today and post the petitioners at a soft station in accordance with their own Policy within a period of one week thereafter. The writ petitions stand disposed of in above terms, so also pending miscellaneous applications, if any.” Similar view has been taken by this Court in CWP No. 9029 of 2023, titled as Kartar Singh vs. State of H.P. and Another, decided on 17.11.2023, which reads as under: “5. Learned counsel for the petitioner has placed reliance upon the judgment of this Court in CWP No. 2114 of 2018, titled as Sunil Kumar vs. State of Himachal Pradesh and Another alongwith connected matter, decided on 23.10.2018, Annexure P-4 in support of his contentions stating that after completion of normal tenure in tribal/hard/difficult/rural/ remote areas an employee cannot be subjected to prolonged stay in such areas. 7. Accordingly, in the facts and circumstances of this case, this Court directs the Respondent No. 1-Secretary (Agriculture), Government of Himachal Pradesh to decide the representation dated 20.09.2023, Annexure P-1, the representation dated 5.10.2023, Annexure P-2 and the representation dated 19.10.2023, Annexure P-3 collectively within two weeks from today. While deciding the representations, the mandate of Clause 12 and 16 of the Transfer Policy issued by the State Government needs to be adhered and also the mandate of this Court in the judgment in case of Sunil Kumar (supra) be also taken into account while deciding the case of the petitioner.” 10. As aforesaid, the writ petition as well as the pending miscellaneous applications, if any, shall also stand disposed of, accordingly.